Malden News Network v. Malden, City of (SPR 20242688)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 7, 2024 SPR24/2688 Carol Ann Desiderio City Clerk City of Malden 215 Pleasant Street, Room 220 Malden, MA 02148 Dear Ms. Desiderio: I have received the petition of Malden News Network (“requestor”) appealing the response of the City of Malden (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 13, 2024, the requestor sought the following: This is a public [sic] request related to publications at https://x.com/MayorOfMalden by [a named individual] @MayorOfMalden[.] In particular, for each of [ten identified URLs], this request seeks: [1] Email address used as registration for this account during the time of these postings[;] [2] Phone number used as registration for this account during the time of these postings[;] [3] All DMs, Email Notifications / Alerts From [sic] X.com (aka Twitter) sent or received by the Mayor of Malden related to these postings[;] [4] All Email, Text Messages, and media (photos, videos, text etc.) sent or received by the Mayor of Malden in relation to these posts (e.g. scheduling, invitations)[;] [5] Any City of Malden reimbursements or expenses related to any of the identified events featured in these posts[;] [6] Any consent or release forms, with redactions anticipated, in relation to any of the post as required by any photos published[.] The City responded on September 24, 2024, providing a fee estimate. Unsatisfied with the City’s response, the requestor petitioned this office and this appeal, SPR24/2688, was opened as a result. One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Carol Ann Desiderio SPR24/2688 Page 2 October 7, 2024 Fee Estimates – Municipalities If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § 10(d)(i). Municipalities may not assess a fee for the first two (2) hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested unless the municipality has 20,000 people or less. G. L. c. 66, § 10(d)(iii). Where appropriate, municipalities may include as part of the fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. Id. However, municipalities may charge more than $25 per hour if such rate is approved by the Supervisor under a petition under G. L. c. 66, § 10(d)(iv). A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor under a petition under G. L. c. 66, § 10(d)(iv). G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). The City’s September 24th Response In its September 24, 2024 response, the Town provided a fee estimate of $100.00 and stated the following: Response The City is in the process of gathering the information requested and has already spent 2+ hours. We estimate an additional 4 hours to complete the request. We anticipate minimal redactions and thus, no petition will be made to the state. Pertaining to the links themselves, Please be advised that the links included as part of your request are not from the Official City of Malden X (@TheCityofMalden) account. As such, no member of the mayor’s staff processed these posts. The use of governmental staff and resources (including phone or computer) were not utilized. Therefore, there are: not “any messages used to exchange the media or text – by ANY APPLICATION”, not “copies of any media or text used in each post” and not “any consents”

Carol Ann Desiderio SPR24/2688 Page 3 October 7, 2024 Pertaining to the Account, this is a private “X” account and therefore, the following will not be provided: Email address used as registration for this account during the time of these postings Phone number used as registration for this account during the time of these postings All DMs, Email Notifications / Alerts From X.com (aka Twitter) sent or received by the Mayor of Malden related to these postings* *If a notification is received on a @cityofmalden.org email account, it will be provided. Calculation of Fee Estimate To produce these records, the City provides the following fee estimate. . . . In this case, the lowest paid employee who has the necessary skill required to segregate and redact the records requested is a salaried employee whose effective hourly rate exceeds $25 per hour. In accordance with 950 CMR 37.02(2)(m)(1), the Requester will not be charged for the first two (2) hours of those services and will only be charged at a rate of $25 per hour. Thus, in order to continue the efforts, we would require payment of the estimate of $100 (4x $25). We likely will need additional time beyond the 10 days up to 25 days allowed by law. We will put your request on hold until such time as the fee is paid. Should you request a modification by limiting the # of posts that would have to be researched to determine if documents exists, we can revise this estimate. Current Appeal In this appeal petition, the requestor argues that the City did not provide “an itemized, good faith estimate of any fees that may be charged to produce the records . . . as required by law[.]” The requestor additionally refutes the portion of the City’s response in which the City states, “there are . . . not . . .any messages used to exchange the media or text – by ANY APPLICATION[,]” “not . . . copies of any media or text used in each post” and “not . . . any consents[,]” as well as the City’s indication that “[e]mail address used as registration for this account during the time of these postings[,]” “[p]hone number used as registration for this account during the time of these postings[,]” and “[a]ll DMs, Email Notifications / Alerts From X.com (aka Twitter) sent or received by the Mayor of Malden related to these postings” will not be provided. In objecting to this portion of the City’s response, the requestor states: The City claims (wrongfully we believe. . .) there are NOT “any messages used to exchange the media or text – by ANY APPLICATION”. . . NO “copies of any media or text used in each post” . . . NO “consents” . . . NO Email address used as

Carol Ann Desiderio SPR24/2688 Page 4 October 7, 2024 registration for this account during the time of these postings . . . NO Phone number used as registration for this account during the time of these postings . . . NO DMs, Email Notifications / Alerts From X.com (aka Twitter) sent or received by the Mayor of Malden related to these postings (other than email @cityofmalden.org email account)[.] With regard to the requestor’s objections to the City’s claims regarding the existence of certain responsive records and withholding of other responsive records, as described above, please be advised that where the City has yet to produce the records, I find these matters cannot be addressed at this time, as the contents of these records are unclear. Once records are provided, the requestor may appeal the substantive nature of the City’s response within ninety calendar days. See 950 C.M.R. 32.08(1). The requestor further indicates in this appeal that they are entitled to a waiver of fees because “the Mayor has a DEDICATED PRESS FUNCTION on the public payroll.” The requestor is advised that while a record custodian may waive applicable fees, under the criteria in 950 C.M.R. 32.07(2)(k)(l-3), the Supervisor has no authority to order that a record custodian do so. Reasonableness of the fee estimate Where the City provided a response within 10 business days, it is necessary to review the reasonableness of the City’s fee estimate. Although the City indicates in its fee estimate it “already spent 2+ hours” and estimates “an additional 4 hours to complete the request[,]” it is not clear from the City’s estimate how much time is allocated to search, and how much time is allocated for segregation and/or redaction of the records. It is also unclear how many records there are, or the number or minutes that the City must spend per page for redactions. The City must provide additional information regarding the tasks involved in producing these records. Accordingly, the City must provide further details regarding its fee estimate. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). Additionally, although the City advises in its fee estimate that it anticipates “minimal redactions and thus, no petition will be made to the state[,]” it is unclear if the City is assessing a fee for redactions that are not required by law. Under the Public Records Law, a fee may not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(d)(ii); 950 C.M.R. 32.06(4). The City must clarify if redactions are required by law. Further, municipalities may not assess a fee for the first two (2) hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested unless the municipality has 20,000 people or less. G. L. c. 66, § 10(d)(iii). It is unclear whether the City is

Carol Ann Desiderio SPR24/2688 Page 5 October 7, 2024 assessing a fee for the first two hours of employee time in responding to the request. The City must clarify this. I encourage the requestor and the City to communicate further in order to facilitate producing records efficiently and affordably. The requestor may wish to narrow the parameters or include applicable factors to enable the search to be processed. G. L. c. 66, § l0(a)(i). The City must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, § l0(a)(vii) (an agency or municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency or municipality to produce records sought more efficiently and affordably). Conclusion Accordingly, the City is ordered to provide the requestor with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Malden News Network